Press Interpreter

"Life is most precious under heaven"

The change gives new meaning to the old phrase: "Human life is matter of 'heavenly' concern." Now, the word "heaven" refers to the Supreme Court.
　　
01/04/07 -- On December 31st, 2006, chief justices of the Hunan and Sichuan Higher People's Courts signed the last batch of death sentences. Just one day later, the authority to decide life or death would lie solely with the Supreme Court.

Three days before the new year, the Chief Justice of the Shaanxi Higher People's Court signed a death sentence for "homicidal maniac" Qiu Xinghua.

If the decision of the second trial in the Qiu case had been announced after the new year, all the court records would have to have been turned over to the Supreme Court. First the records would have been registered by the clerk and then transferred to Criminal Tribunal Four. After last year's expansion, Criminal Tribunal Four would have been the Criminal Tribunal responsible for death row inmates who were from the northwest region of China [including Shaanxi where Mr. Qiu was prosecuted.]

Criminal Tribunal Four is composed of a panel of three judges. If they had approved the use of the death penalty, they would have been required to bring Qiu Xinghua into court and allow him a final opportunity to plead his case. According to the usual practice used by the Supreme Court in approving the use of the death penalty--if the panel of judges does not reach a unanimous decision the head trial court justice will convene a meeting with the associate justice and the presiding judge. If there is still no decision, the case is then passed over to a Supreme Court committee for a final review. This committee is composed of the chief justice, associate justices, and some of the head trial court judges. Their decision is final. Even cases that are not controversial must clear three hurdles once they come under review in the Supreme Court; the panel of judges, the head trial court judge, and the chief justice. But time was not kind to Qiu Xinghua who was not destined to receive this high level of judicial process. Starting in 1980, Higher People's Courts in China, like the court in Shaanxi, wielded control of making the final decision of most ordinary death penalty cases and also wielded the power to review appeals. The result is that when the appellate court issues a judgment, there is little opportunity to attack that judgment.

In this Higher People's Court, the fate of the suspects has already been decided. Most people on death row do not have an opportunity to plead their case before the Supreme Court

Four years ago, attorney Zhu Zhangping (also from Shaanxi) barged into the Supreme Court to plead the case of his client Dong Wei. At the moment he walked into Judge Li Wuqing's office to explain his reason for coming, Dong Wei had already been brought into the execution ground.

Zhu Zhanping didn't rescue Dong Wei from the "Gate of Hell," but his actions did stir up a debate on whether the power to decide capital punishment cases should be returned to the Supreme Court. According to the recollection of Chen Guangzhong, tenured professor at China University of Political Science and Law, the last four or five years have seen the advent of widespread discussions of the legal process afforded in death penalty cases and the possibility of abolishing the death penalty altogether.

Zhu Zhanping frankly said that he had no power to affect the judiciary. All he could do is "defend one person at a time." From the Dong Wei case up until now, Zhu Zhanping has successfully defended six inmates. In these six borderline cases, the appeals court accepted Zhu's arguments and changed their sentence from "immediate execution" to "indefinite postponement of execution." Also, starting with the Dong Wei case, Zhu Zhanping has gone from an ordinary defense attorney to a well known figure in academia, giving lectures and discussing review of death sentences and the possibility of abolishing the death penalty. He has become an advocate for the school that believes "kill with caution, kill with scarcity."

Criminal law expert Chen Xingliang edited a book entitled "A Discussion of the Death Penalty in China: Perspective From the Qiangxia Liuren Case." The book examined the use of the death penalty in China from both a substantive and procedural law perspective. The book included views of scholars who believe that the best way to limit the number of executions in China is to increase the amount of process given to suspects.

After all, human life is a matter of "heavenly" concern. According to China Academy of Social Sciences criminal law expert, Wang Minyuan, "heaven" represents some sort of supreme power or authority. Anciently, "heaven" referred to the "son of heaven", the emperor. At that time all death sentences had to be personally signed by the emperor. Modern rule by law requires that the death penalty must by approved by a Supreme judicial authority. Now the word heaven refers to the Supreme Court; capital punishment--the difference between life and death--is a decree that only the Court can issue.

"Punish Fast, Punish Hard" The Mark of History

The basic criminal law of China is very clear; the Supreme Court must approve all capital punishment cases. In 1979, other provisions of the law had similar requirements. The 1996 and 1997 amendments did not change this basic premise.

But, during this time period, the Higher People's Court did not exercise its right to review all the death penalty cases. Common capital crimes like homicide, robbery and rape were frequently decided by the Higher People's Courts.

"Almost as soon as the new law was passed was it set aside," said criminal law expert Chen Guangzhong. The time when the Main Criminal Law [giving the Supreme Court sole jurisdiction over capital crimes] was passed happened to also be the time of the "hit hard" campaign.* Because of the "punish hard, punish fast" campaign and a trend of increasingly harsh punishments, the Standing Committee of the National People's Congress decided to give the Higher People's Courts jurisdiction over some types of capital crimes--those that seriously affected public safety.

In 1980 and 1981 the National People's Congress (NPC) adopted two separate resolutions memorializing this change into law.

In 1983, the NPC amended the law governing court organization, firmly establishing the change. This change remained until October 31, 2006.
Criminal law expert Fan Chongyi in 1984 brought students to Hebei to attend a "hit hard" campaign. He told this paper's reporters that at that time the Tangshan "kitchen knife killers" were on a rampage. The locals did not dare go out at night. In other regions of the country there were frequent instances of violent crime. Criminal law expert Gao Mingxuan said that at that time it seemed that "crime was totally out of control."

The criminal law policies were under intense pressure to change. "the lawmakers increased the variety of criminal offenses and the judiciary increased the number of death sentences." This trend prevailed from the beginning of the 1980s up until recently. In 1979, there were only 27 different capital crimes. In 1982, some crimes that caused purely economic losses [as opposed to violent crimes] became punishable by death. At that same time, crimes solely punishable by death increased steadily; in 1995 there were 24 such crimes. The total number of capital crimes in 1995 was 71, almost three times the number in 1979.

In order to realize the "punish hard" part of the "punish hard, punish fast campaign" some courts pushed the limits and issued the most severe punishments allowable. "At that time if it was a borderline case and the judge had the option of ordering an execution or not, he would usually tend to order an execution," said Cheng Guangzhong.

In comparison, the Supreme Court’s capital punishment review procedure had another characteristic; the process was slow, certainly not on par with the requirements of "punish hard, punish fast." Xuandong understands this on a personal level. He spent ten years as a judge responsible for reviewing capital punishment cases in both the Heilong province Higher People's Court and the Supreme Court. Currently, he is now a criminal defense attorney.

As Xuandong sees it, there are two reasons the process takes so long. Capital punishment cases tend to accumulate in the Supreme Court where limited personnel are insufficient to keep up with heavy docket pressures. Also, when the Supreme Court takes on a capital punishment case, they retry it from the very beginning, often hearing one or more appeals--a process that is redundant and tedious.

But in order to be in accordance with the "punish hard punish fast" campaign, it was found that the Higher People's court were more effective [they handled cases quicker.] Because of that very reason, this practice continued for more than twenty years even though the two main criminal codes as well as the Rules of Court Procedure were clearly in conflict with the practice.

As the "hit hard" campaign became more entrenched, various cases of wrongful convictions leading to executions became public. Cheng Guangzhong remembers one instance most clearly. In 1980, the true killer in a Henan murder case was discovered in Luoyang. Unfortunately, by the time he was discovered the man who was wrongfully convicted had already been killed by a firing squad. At that time it was rare for wrongful convictions to come to light.　

In the late 1990s Shen Deyong, associate justice of the Supreme Court wrote an article in which he stated, "In the last several years, some areas have seen an increased use of the death penalty. Some areas have even reported the executions of people who were mistakenly convicted. There are many reasons for this; the handing down [to the lower courts] of capital punishment jurisdiction is certainly not unrelated to this phenomenon. 　

In rethinking the "hit hard" campaign, it was suggested that the Supreme Court again be given the power to review capital punishment cases. Academics began cautiously discussing the trends in China's use of capital punishment, but the debate did not become widely public.

Even after the 1996 amendments to the criminal code, lawmakers still adhered to the status quo which embodied the contradictions in the Rules of Court Procedure.　

From these events, it seemed that review of capital punishments cases had become a "forgotten corner" of the law. In reality, during the amendment process, academics, and legislators did not ignore the problem. Some academics remember the words of Wang Hanbin, Vice President of the Standing Committee of the People's Congress. In one meeting he said that "the Rules of Court Procedure were like an illness in his heart."　

After ten years, during which courts continued to delegate capital punishment cases to lower courts, the review of capital punishment cases became tainted by the local nature of the lower courts. Xuandong believes that as the authority to review capital punishment cases was delegated lower and lower, they became more and more ensnarled with the social concerns in the region in which they were heard. One of the impediments to recalling the power of review was that local courts were reluctant to loose their grip on their authority. 　

***

According to some reports the Supreme Court overturns about one fourth of the death sentences it hears—perhaps even more.

“In borderline cases that could go either way, in the past, the courts would probably choose execution. After the power to decide these cases goes back to the Supreme Court, this should change,� said Fan Chongyi. However, several experts have this concern; if inmates are not sentenced to death, will the victims and families of the victims feel that justice has been done. This will perhaps cause some degree of conflict.

“A life for a life� is an intuitive idea; most Chinese people feel that such is the natural order of things. In the situation of Qiu Xinghua, who may have had a mental illness, people thought at the beginning, “since he’s killed so many people, he himself should be killed.� Fan Chongyi thinks that people should stop thinking that killing a criminal is restitution for the life that has been taken. He believes that the death penalty should only be used for especially heinous crimes. In the spirit of “making the punishment fit the crime� the Supreme Court is in the process of setting guidelines for when to apply the death penalty.

Chen Weidong worries that since the 1979 when the rule by law was restored, the Supreme Court did not in practice exercise sole jurisdiction over capital punishment cases, therefore they lack experience from which to reflect. In addition there are an increasing number of conflicts within society and people’s ability to accept change is limited. Perhaps in a short time period it will be difficult for people to adjust and change their perspective. Additionally, it remains to be seen whether local party officials will be able to sit idly by while the Supreme Court reviews capital punishment cases and not exercise any unwelcome influence in the process. This might compromise the quality of the proceedings.

A new era in China’s death penalty has arrived. The defense lawyers in Jingcheng are gearing up for the change. Xuandong has already been invited to dozens of law firms in different parts of the country that hope to utilize his skill in forming defense strategies. However, the degree to which criminal defense attorneys will be able to involve themselves in the Supreme Court review process is a question that is still up in the air.

Scholars hope that returning the power to decide capital punishment back to the Supreme Court is just a step, (though perhaps an unnecessary and even time-wasting step) in abolishing the death penalty altogether. Gao Mingxuan has his own schedule for how he hopes things will develop; by 2021 reduce the number of death sentences by two thirds, by 2049 abolish the death penalty in China altogether. Just as Rober Badinter** believes; mankind’s respect for human life will triumph over mankind’s fear of evil.

[Portion of text untranslated]

*The "hit hard" (yan da) campaigns were special efforts by Deng Xiaoping to punish crimes with greater severity. There were three main yan da campaigns in 1983, 1996 and 2001.

** A French advocate of the abolition of the death penalty. He is mentioned in an earlier, un-translated portion of the article.

By Zhao Lei

--Translated by Joseph McMullin

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